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IN T I E SUPREME COURT OF JUDICATURE OF JAMAICA i i

IN FULL COURT I

SUIT NO. MI06 OF 1998 I I

I IN THE MATTER of tibe Jamaica (Constitution) I Order In Council '1962; AND IN THE MATI'ER of Section 20 Sub-section (1) AND Section 25 \ * ) i-. \ Sub-sections (1) and (2) of the Constitution of Jamaica. I

I IN THE hWTI'ER of Indictment No. of 1998 In the Resident Magistrate's Court Regina v. *Norma Von Cork and Others

IIETWBEN NORMA VON CORK - Applicant

AND DIRECTOR OF PUBLIC PROSECUTIONS - 1s t Respondent

AND TI IE ATTORNEY GENERAL - 2nd Respondent

CORAM: THE EIONOUMBLE MR. JUSTICE WOLFE - CHIEF JUSTICE THE I-IONOURABLE MR. JUSTICE COOKE THE EIONOURABLE MR. JUSTICE KARL HARRISON

R.N.A. Henriques, Q.C., Miss Norma Linton, Q.C., Delano Harrison and Patrick Bailey for the Applicant Brian Sykes, Deputy Director of Public Prosecutions for the Director of ~ u b l i c ~ r o s e c u tions Lennox Campbell, Senior Assistant Attorney General for the Attorney General

IIeard: November 30 and December 1,1998.

WOLFE CJ

On December 1, we handed down our decision dismissing the motion

herein and promised to put our reasons in writing. T l~e promise is now being

fulfilled.

The applicant, Mrs. Norma Von Cork was at the time of the commission

of the offence, with which she is charged, an Acting Resident Magistrate

assigned to the parish of Manchester.

The indictment upon which she is charged is for conspiracy to pervert the

course of public justice. The particulars of offence are as set out hereunder.

"Norma Von Cork, Christopher Moore, Morris Thompson, Radcliffe Orr and Clive Ellis on divers days between the 1st day of September, 1997 and tl le 31st day of October, 1997, in the parish of Manchester conspired together and with Ron McLean and other persons to pervert the course of public justice by causing the said Radcliffe Orr to enter a false plea of guilty to the charges of Possession of Ganja, Dealing in Ganja, Attempting to Export Ganja and Conspiracy to Export in order to cast doubt on the validity of the convictions of Brian Bernal and the said Christopher Moore intending thereby to pervert the course of public justice."

The matter is scheduled to be tried in the Corporate Area Resident

Magistrate's Court, Criminal Division, holden at Half Way Tree. When the

accused persons appeared before the Court for the first time the applicant was

granted bail in the sum of Two Million Dollars. Her co-accused were granted

bail in the sum of One Million Five Hundred Dollars each.

The motion herein is an "Application under Chapter 3 of the Jamaica

(Cons ti tu tion) Order in Council 1962 (hereinafter called "the Cons ti tu tion") that

section 20 subsection (1) thereof has been and is being, contravened in relation to

her".

The applicant prays the Court to grant her the undermentioned reliefs.

A. A DECLARATION

That the right of the Applicant to a fair hearing has been, and is being

contravened by reason of the institution of criminal proceedings against

the Applicant in the Resident Magistrate's Court, before a Judge of that

Court, of equal Jurisdiction to that enjoyed by the Applicant, who was

herself a Resident Magistrate at all material times.

B. ANORDER

(1) That the aforesaid Indictment against the Applicant be withdrawn.

(2) That the Applicant be unconditionally discharged.

ALTERNATIVELY

(3) That all further proceedings upon the said Indictment be stayed

until the said Indictment can be transferred from the Resident

Magistrates Court and heard and determined before a Court of

Higher Jurisdiction, i.e. a Circuit Court presided over by a

Supreme Court Judge enjoying security of tenure, security of

constitutionally en trenched remuneration and institutional

independence sitting with a jury, thus to ensure that the applicant

will enjoy her full constitutional and legal right to a fair hearing.

C. ANORDER

C! That the Respondents do pay the costs of this Application or such other

Order as the Honourable Court may think f i t

D. ANORDER

For such further and other relief as the Court may seem fit.

The Grounds of the Application are:-

. That by virtue of section 112 of the Constitution of Jamaica, it is

submitted, Resident Magistrates are members of the lower

judiciary and, as such, enjoy a lesser degree of security of tenure

than members of the higher judiciary, to wit, judges of the

Supreme Court and Court of Appeal. Thus, "there is nothing in the

Constitution to protect the lower judiciary against Parliament

passing ordinary laws -

(a) abolishing their office

(b) reducing their salaries while they are in office, or

(c) providing that their appoinlments to judicial office shall be

only for a short fixed term of years. As "judges of inferior courts"

their independence from all local pressure by Parliament or by the

Executive is not as "firmly guaranteed" as that of the judges of the

higher judiciary.

2. That, it is submitted, whatever the personal integrity of the

individual Resident Magistrate, the concept of judicial

independence falls to be determined on the basis not of subjective

impartiality but of such objective considerations as security of

tenure and security of remuneration.

3. That on December 1 2 lW1 having been charged with others with

conspiracy to pervert the course of justice, the Applicant appeared

in the St. Andrew Resident Magistrate's Court, accused before a

Resident Magistrate having equal jurisdiction to Chat which the

Applicant enjoyed at all material times. The Resident Magistrate

ultimately offered the Applicant bail in the sum of Two Million

Dollars ($2,000,000.00) whilst offering each of the Applicant's co-

accused bail in the sum of One and a half Million dollars

($1,500,000.00)

4. That the offer of bail granted the Applicant in such a high sum was

entirely without precedent in the Applicant's experience both at the

Bar and on the Bench, and, this leads the Applicant to apprehend

that the Resident Magistrate's exercise of discretion in that respect

was not wholly independent of the fact of the Applicant being

herself a Resident Magistrate of equal standing, then accused

before her.

5. That, further, as respects the higher sum in which bail was offered

in comparison to that relating to the Applicant's co-accused,

charged with the self-same offence, Lhe Applicant is constrained to

infer therefrom an absence of equal treatment under the law, to

which, it is submitted, the Applicant is entitled before the Courts.

6. That the plain inference from the manner in which the Resident

Magistrate exercised her discretion as respects the grant of bail to

the Applicant, as averred above is that -

(a) Because of the Applicants status as an accused Resident

Magistrate, the Applicant was being treated differently from

the average person accused of the same or like offence; and

(b) Because of the said status, the Applicant was being treated

differently, in fact from the applicant's very co-accused; and

(c) Accordingly, even at that preliminary stage of the

Applicant's trial, the Applicant was not accorded that

judicial impartiality to which the Applicant is

cons ti tu tionally entitled.

That it is submitted that it would be ips0 facto unfair to require a

Resident Magistrate to determine guilt or innocence of one merely

recently a colleague, in that there is every likelihood, it is

submitted, that, in the effort to avoid public perception of a

favourable bias, he/she may be liable, even subliminally, to

unf avourable bias.

8. That, in all the premises, having regard to the Applicant's status as

an accused Resident Magistrate, charged with an offence against

the criminal justice system itself, the proposed trial of the

Applicant's case by any Resident Magistrate, sitting alone whose

security of tenure and security of remuneration are not absolutely

rooted in the Constitution, would constitute a co~~travention of Uie

ApplicanYs riglit to a fair trial under section 20 of Ule Constitution.

Section 25 (I) of t l~e Constitution states:

"Sul~ject to the provisio~~s of subsection (4) of Uus section, if any person alleges tliat any of the provisions of section 14 to 24 (inclusive) of Uus Constitution has been, is being or is likely to be contravened in relakion to him, then without prejudice to any other action with respect Lo tlie same matter which is lawfully available, Umt person may apply to t l~e Supreme Court for redress."

Section 25 (2) sh tes:

"The Supreme Court shall have original ji~risdiction to hear and determine any applicaLion made by ally person in pursuance of subseclion (1) of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for tlle purpose of enforcing, or securing Uie enforcenlent of, any of the provisioris of the said sectio~is 14 to 24 (inclusive) to Ule protection of wlucl~ tlie person concerned is en titled:

rrovided Lliat tlie Supreme Court shall not exercise its powers under tlus subsection if it is satisfied that adequate means of redress for t l~e contravention alleged are or have been available to the person concerned urider any other law."

'The complaint of the Applicant is that Ihe fundamental right guaranteed

under section 20 (1) of the Constitution has been or is being contravened.

Section 20(1) stiy ulates:

"whenever any person is charged with a criminal offence he shall unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial Court established by law." (emphasis mine)

Mr. Henriques, Q.C., submitted that the right guaranteed under section

20(1) must be looked at and the scope determined. In this regard he cited the

dictum of Lmd W i l b e t f m in Minister of Home Anairs and Another v. Collins

McDonald Fisher and Another 2 WLR 889 a t 894.

"These antecedents, and the form of Chapter 1 itself, call for a generous interpretation avoiding what has been called "the austerity of tabulated legalism, suitable to give individuals the full measure of the fundamental rights and freedoms referred to."

In essence Lord Wilberforce advocates a liberal approach in the

interpretation of a constitutional instrument.

This approach found favour with Lord Diplock in Attorney General of the

Gambia v. Jobe [1985] LRC (const) 556 a t p. 565 where he opined - "that a constitution, and in particular ,that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled is to be given a generous and purposive construction."

r'\i This Court is invited in its interpretation of what is meant by an \ ,

"Independent and Impartial Court" to consider that there are two units:

(a) the structural

(b) in~partial.

No complaint is being made abotrt the structure of the Court in which the

applicant is to have her trial. NeiU~er is any athick being made on the office of

the magistracy. To illustrate lhe interpretation which must be given to

independence and impartiality, the case of Vnleilte u. The Qrrccir 24 D.L.R.

(2 (4n) P 161 was cited, in which the Supreme Court of Canada held:

"Judicial independence involves both individual and i~~stitution relationships: ff te individual independence of a judge as reflected UI such matters as security of tenure and the ins ti tulional illdependence of Ule Court or tribunal over which he presides, as reflected in its institutional or ad~ninistra tive relationsluys to the executive and legislative branches of Government. Althotigh judicial independence is a status or relationslup resting on objective conditions or guarantees, as well as a state of mind or attitude in the actual exercise of judicial functions, the test for independence for Ule purposes of section ll(d) of the charter is whether the tribunal may reasonably be perceived as independent. Both independence and impartiality are fundamental not only to t l~e capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. It is important that a tribunal shoulri be perceived as independent and that the test for independence sl~ould include U I ~ t perception. The perception must, l~owever, be a perception of whether tl ~e tribunal enjoys the essential objective conditions or guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or guarantees. The standard of judicial independence under section ll(d) must necessarily be a standard that

reflects what is common to, or at the heart of the various approaches to the essential conditions of judicial indeper~dence in Canada and need not be the standard of uniform provisions such as the standard embodied in ss 99 and 100 of the Constitution Act 1867 for judges of the Superior Cout ts."

Mr. Henriques contends that because the office of the Resident Magislrate

is not ensluined in the Constitulion there is no security of tenure and that

c) security is the first essential condition of judicial independence. This lack of

security of tenure he contends is likely to put a Resident Magisbate who is called

upon to adjudicate in a matter involving another Resident Magiskale under

great pressure with the resultant effect of bias.

Tlus pressure he says may arise from tl~e perception of the public in

circumstac~ces where one colleague is trying another colleague that justice will

-\ not be done. TIds perception could result in the colleague magistrate bending \

over backward to dispel the perception to the detriment of the applicant.

Mr. Campbell sought to argue that the uiatter was not properly before the

Court in that the allegations tend to show that the applicant was contending that

the right guaranteed under section 20(1) was Likely to be contravened and

should therefore have been commenced by writ in keeping with the provisions

of the Judicature (Constitutional Redress) Rules 1963.

(1) 'TIUS submission does not find favour witl~ me. The applicanfs allegation

is that the guaranteed right has been or is being contravened. The process is

continuous. The applicant is contending that for as long as ~e matter remains

C . in the Resident Magistrates Court the guaranteed right is being contravened.

There is no allegrition of "likely to be contravened".

Mr. Campbell submitted that:

1. The applicant has failed to produce any evidence to subslarltiate

an allegation of danger of bias in respect of any hearing held or

likely to be lleld.

2. The disparity between the quantum of bail offered to the applicant

and her co-accused is explainable by the factors ~rhicll the Resiclent

hlagistrate is obliged to consider when considering the whole

queslion of bail.

3. In considering the question of perception the Court sl~ould view

1 the matter through the eye of the reasonable man.

1 I Mr. Sykes adopted tl~e submissions of Mr. Campbell and further

I submitted that in considering the question of hidependence and impartiality it

1 was important to consider whether the institutional protection afforded the

tribunal was commensurate with the particular offencewith wl~ich the person is

charged.

In considering the whole question of independence and impartiality, I

would adopt the words of Fawcett itr the ~pplicatiorr of Eiuoyfan Corrvetrtiotr

"The ofkn fine distinction between independence and impartiality turns mainly, it

seems on that behveen the status of the tribunal determinable largely by objective tests and the subjective attitude of its members, lay or legal. Independence is ~rinrarilv freedom from co~~trol bv or subordi~latio~r to lhe executive power it1

Ule State; impartiality is rather absence in the members of the tribunal of personal interest in tlte issues to be determined by it, or some form of y reiudice." (emphasis mine)

I agree wilh hlr. Campbell for the first respondent that not one iota of

evidence has been adduced to support any finding that the nlagistracy in

Jamaica does not enjoy freedom from control by or subordination to the

executive power in lhe state or that the magish-acy has any personal interest ill

Ule issues or entertains any bias or prejudice agai~lst tile applicant.

It is fnllacioi~s to suggest tl~at because the nlagislracy does not enjoy

security of tenure as the Judges of Appeal and Supreme Courts that it is ally less

independent

Wltilst the Constitution does not give security of tenure to a magistrate,

section 112(3) of the Cons ti ti1 tion s tipda tes who is vesled with disciplinary

power over Resident Magistrates and how that power was to be exercised. So it

is not as easy to remove a Resident Magistrate from office as the applicant has

submitted.

The disparity in the bail offered to the accused persons to my mind does

C? not indicate bias. Bail is in the discretion of Ule Magistrate. That decision on

the part of the Magistrate can only be challenged on the basis of improper

exercise of tile discretion. There is no complaint that the discretion was wrongly

Cooke, J.:

I have had the benefit of reading the draft judgment of the Honourable

Chief Justice. I respectfully agree with the views expressed therein.

However. I would like to offer my thoughts on the submission that:

It would be ips0 facto unfair to require a Resident Magistrate to determine guilt

or innocence of one merely recently a colleague, in that there is every likelihood,

it is submitted, that. in the effort to avoid public perception of favourable bias

he/she may be liable, even subliminally to unfavourable bias.

The applicant has posited a "public perception" which she fears will be

inimical to her receiving a fair trial. She apprehends that the Resident

Magistrate who conducts the trial will be burdened by the *public

perception" that such Magistrate will be sympathetic to his/her erstwhile

colleague. Consequently, the inevitable approach of the trial Magistrate

would be to dispel this "public perception". In dispelling this "public

perception" the applicant seeks to arrive at the conclusion that the

objectivity of the trial Magistrate will be so adversely affected as to

preclude a fair trial. To buttress this submission, it was pointed out that

members of the lower judiciary do not have the same security of tenure as

those of the higher judiciary. Hence, it was argued. in respect of the trial

of the applicant, it was better to have the matter heard in a Circuit Court

presided over by a Supreme Court Judge.

There is no suggestion, nor could there be, that the magistracy has not

performed, and is not performing, its duties with independence and

impartiality. The want of security of tenure available to the higher judiciary

does not seem to have in any way influenced, affected or detracted from

magistracy gives coddence that the independence and impartiality have

always been maintained. There is nothing to suggest that in this case it will

not be maintained. It is expected that Magistrates as trained judicial officers

will be m t s of the law. The "public perception" posited by the applicant

is entirely contrived.

It is right, that all persons who are jointly charged should, as far as possible,

be tried together before the same tribunal. From a practical point of view,

this is preferable because it cuts down on expense and makes better use of

judicial time. But of even greater importance, all persons jointly charged

should receive equal treatment.

The motion is without merit and should be dismissed.

I have read the reasons for judgment of the Honourable Chief Justice and my brother Cooke and I

am in total agreement with their reasons. I wish to say a few words however.

erne C o w No issue was taken by the Applicant as regards the Magistracy's jurisdiction over the trial of the

0 offence for which she is charged. The gist of Mr. Henriques arguments for a removal into the

Supreme Court, as I understand him is firstly, that Resident Magistrates would not be fiee &om local

pressure having regard to their lack of security of tenure and remuneration. Secondly, it was also

argued that there would be an onerous responsibility on the part of a Magistrate to determine guilt

or innocence of a colleague who now occupies a seat in the dock.

Mr. H e ~ q u e s argued that the mischief in the case was to avoid the public's perception of the trial

not being fair and firther that the Magistrate trying the case might well apply a standard that was

not fair. He asked the Court to look at the notoriety of the case out of which the instant case arose.

The pressure he says may arise fiom the public's perception that justice will not be done since one

colleague is trying another colleague.

The respondents contended on the other hand, that the applicant had failed to produce evidence to

substantiate the danger of bias in respect of any hearing. Mr. Campbell argued that the disparity

between bail was explainable by factors which the Resident Magistrate is obliged to consider in

order to properly exercise hidher discretion in granting bail. He asked the Court to look at bias

through the eyes of the reasonable man. The test he said, to ascertain whether there could be bias is

r) whether there was a real danger of bias of the Magistracy.

Mr. Campbell further submitted that having regard to the training of Resident Magistrates they could

properly adjudicate in the matter with an impartial mind. He argued that if the Court were to accede

to the Applicant's request then, there would be unfairness if the applicant were to be singled out for

special treatment. In addition, Mr. Sykes submitted that since there was concession that the

Magistrate's Court had properjurisdiction over the trial, there was no real basis that there would not

be a fair trial.

for j , ,

The researches of Counsel and indeed of myself could not unearth any case within our Jurisdiction

where a Resident Magistrate was on trial for the offence charged in the indictment and has made an

application before the Court in terms of the motion fled. It was said by Mr. Henriques that it was

the first time in the history of the judiciary in Jamaica that a case of this nature has arisen for

consideration. This Court therefore, has the onerous task of making a decision on the issues raised.

As in England, in most parts of the West Indies including Jamaica, jurisdiction at first instance may

be exercised summarily or by trial on indictment. By law, trial in the Resident Magistrate's Court

is by the Magistrate alone without a jury whereas a jury is indispensable in the circuit court system.

Although many indictable matters can be heard by either tribunal, the law is quite clear however, that

there is no power in the accused to elect jury trial. See R v Gregory Stephens Report 573 (Jamaica).

and bra

Let me now turn my attention to the issues of impartiality and bias. It is sufficient that there should

arise fiom all the circumstances of the case a reasonable suspicion that strict impartiality could not

or will not been shown in adjudicating the questions before the ~e'sident Magistrate. Lord Justice

Vaughan Williams has stated in a well known passage in his judgment in the case of Rex v The

Justices of London (1908,24 T. L. R 274), the following words: -

"No one suggested that in these bias cases it was necessary to "prove bias in fact, or

that a finding that there was a sufficient "bias to disqualify a magistrate involved any

consideration of the "personal qualities or personal action of the magistrate said to

be "disqualified. Every one agreed that the whole basis of the decisions as to

pecuniary interest and bias was the question as to "the effect likely to be produced in

the minds of the public or a "class of the public as to the fairness of the

administration of "justice if the magistrate objected to were allowed to sit and "take

part in adjudicating upon the particular case. This "question was one of fact, and it

was a question which was "difficult to decide because it was really a question of

degree. "And it was a question which had to be considered and decided "separately

in each case. "

The authorities show that it is not n v that bias should in fact be established: it is sufficient that

circumstances should exist which might cause a fair-minded and reasonable man to doubt whether

justice will be disiiterestedly and impartially done in the matter. The Supreme Court must be guided,

in exercising this jurisdiction, by the maxim that it is not sufficient to say that justice will in fact be

done in the matter; it must be shown that it is apparent to all reasonable men that justice will be seen

to be done.

For the purpose of applying the above principles to the circumstances of the case before this Court

the facts outlined in the grounds in support of the Motion and the affidavit of the applicant were

examined and considered.

On the face of it, the only allegation which speaks of bias or likely impartiality and bias is that which

concerns the exercise of the Magistrate's discretion on the matter of bail. I did not accept the

averment that the difference in the sums offered for bail amounted to an absence of equal treatment

under the law. I bear in mind the principle that bail must not be excessive (Exp. Thomas [I9561

Crim. L. R 119 ) as well as the principle that the means of the accused would have to be considered

when fixing the amount. I do believe, that these an factors a Resident Magistrate did take into

consideration on the issue of bail. The following dicta I find quite apt in the circumstances:

"The measures to provide an opportunity for bail to be granted to an arrested person

pending his trial are merely procedural, and although they impose a public duty on

the police, do not affect the question of the gcult or innocence of the accused person".

Per Cools-Lartigue in R v Wilfred Wright (1953) 6 J. L. R 265 (CA)

I concluded therefore, that no evidence has been adduced to show the danger of bias now or likely

bias andlor impartiality in the fbture. See R v Gough [I9931 A.C 646.

the ofice of a Resident Magistrate is set out in

section 1 12 of the Constitution. The section states inter alia:

"1 12 (1) - Power to make appointments to the offices to which this section applies

and subject to the provisions of subsections (3) and (4) of this section, to remove and

to exercise disciplinary control over persons holding or acting in such offices is

hereby vested in the Governor General acting on the advice of the Judicial Service

Commission.. ."

Section 100 (1) speaks of the tenure of office of Judges of the Supreme Court. The section reads inter

alia:

"100 (1) - Subject to the provisions of subsections (4) to (7) (inclusive) of this

section, a Judge of the Supreme Court shall hold office until he attains the age of

sixty - five years:

Provided that :-

(a) he may at any time resign his office; and

(b) The Governor General, acting on the recommendation of the

Prime Minister after consultation with the Leader of the Opposition,

may permit a Judge who attains the age of sixty-five years to continue

in office until he has attained such later age, not exceeding sixty-

seven years, as may (before the Judge has attained the age of sixty-

five years) have been agreed between them."

(N.B T h e e of r- now sev-. )

The decision in Valente v The Queen 24 D.L.R (4&) 161 speaks of a perception as to whether or

not the tribunal enjoys the essential objective conditions or guarantees of judicial independence, and

not a perception of how it will in fict act. It is my considered view, that although there is no express

provision in the Constitution guaranteeing the security of tenure of appointment and remuneration

of Resident Magistrates, they are not necessarily susceptible to pressure and/or removal at the

''whims and fancies" of the public or political directorate. The Constitution safeguards against this

and puts in place certain measures before any action can be taken against the Resident Magistrate

for failure to carry out hidher judicial functions. I am fbrther of the view that a Resident Magistrate

need not "look over his shoulder" so to speak, when he or she is called upon to carry out his judicial

bnctions.

Finally, I ask myself this question: Do we not have one Resident Magistrate in this Country who

-.. could display the qualities of impartiality and lack of bias? It would be a sad indictment upon our I

Magistracy if there was none. Why should this Court separate the persons accused and allow the

public to believe that there is partiality and inequality before the law? 1 do believe and so hold that

the matter ought to remain in the Resident Magistrate's Court.

For the above reasons, I was in total agreement that the Motion should be dismissed.

C'I exercised. The complai~~t is tllat the disparily may give rise to ffle perception of

bias against the applicant

I find the argument specious. Tlre instances are numerous where persons

clrarged jointly are offered bail in different sums depending on the nature of ffre

parties involvement in the alleged crime or the ease with whicl~ a party may be

able to abscond and forfeit a small sum.

A matler which ought to be given consideration is the fact that the

applicant is jointly cl~arged with others who have not joined in the complaint

and are willing to submit themselves to the jurisdiction of the Resident

Magistrale's Court Do we remove the case into the Supreme Court lo facilitate

Ule apprehension of the applicant tl~at a fair trial will be denied her?

hr closing let me state Ulat I an1 of Ihe view that the perception of which

h8l.r. IIciuiques speaks is more imagined than real. It must be borne in mind that

magistrates are legally trained persons conscious of the principle of law wluch

states that all accused persons are presumed innocent until proved guilty.

I am not satisfied tlmt the provisions of section 20(1) have been or are

being contravened.

For ll~ese reasons I concurred w i h my Learned Drotl~ers in ordering that

the Motion be dismissed.

Resident Magistrates carrying out their tasks in a judicial manner.

Certainly, there is no public perception that a Magistrate will be removed

because of any particular decision, In any event, a Magistrate cannot be

lightly removed. See section 1 12 of the Jamaica (Constitution) Ofdkr in

C o u n d Further, although this case is unique in that it is a former

Magistrate who is on trial, Magistrates have tried a number of cases

involving very prominent persons in our society. There has never been any

public perception that in the trial of these prominent persons there was

any lack of independence and impartialrty.

One of the fundamental ideals of our administration of justice is equality

under the law. Were the court to find favour with the applicant's motion,

there would be a situation whereby the applicant would be tried in the

Circuit Court and her three ceaccused tried in the Resident Magistrate's

Court. The p~~bl ic would want to know, and is entitled to know, why the

applicant is being treated differently from her three ceaccused. Very

good cause must be shown. Has this been demonstrated in this motion?

The only evidence p ~ ~ t forward is that "The Resident Magistrate ultimately

offered the applicant bail in the sum of two million dollars

[$2,000,000.00] whilst offering each of the applicant's c~accused bail in

the sum of one and a half million dollars ($1,500,000.00]." This, it is said,

did not accord with judicial impartiality. Perhaps everyday in respect of bail

different conditions are attached as between ceaccused persons,

according to the circumstances which prevail before the tribunal. It (- I, cannot be said that the difference in the sums is any indication that the ,

applicant will not have a fair trial. This lack of evidence means that the

applicant can only rely on a theoretical apprehension. The theoretical

apprehension is unfounded. The history of the performance of the